Appellate Law & Practice

CA1: no habeas in dual-theory case

Leftwich v. Maloney, No. 06-2583.  In this habeas case, Selya makes one thing clear: he knows how to use big words to keep the damned damned.  He says there is one issue, “Was the evidence sufficient, in terms of the Due Process Clause, to ground a conviction for first-degree murder either as a principal or as a joint venturer?”  Selya figures out which theories of guilt (joint venturer or principal) the state courts passed on and concludes that the state court didn’t address whether his conviction as a principal would stand up to due process standards.  Finally, Selya says that the defendant confessed that he helped dispose of the body, and therefore, enough inferences could be drawn.

CA1: Apprendi pipeline case sees briefly sees light in IAAC context

Martinez-Medina v. US, No. 06-1594 (unpublished).  This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255.  The grounds asserted are whether, in an “Apprendi Pipeline” case, the defendant was given ineffective assistance of counsel when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence.  But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.)  Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error.  Therefore, the statutory maximum was life, and there were no real Apprendi claims.  Therefore, appellate counsel’s concession didn’t make a difference.

The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.

CA1: Rehearing denied with dissent in AEDPA “remedy” case

Evans v. Thompson, No. 07-1014 (our coverage of original case here).  Judges Torruella and Lipez begin by cataloguing other dissents from denials of petitions rehearings in banc in other circuits regarding the scope of review in habeas cases (you know, the whole “clearly established” thing)

They explain that:

Although Congress has the power, pursuant to the Constitution, to limit the jurisdiction of the lower federal courts, its authority is not plenary. Even as Congress may confer or restrict the federal courts' jurisdiction -- its "quantitative powers" -- it may not instruct the court how to decide certain cases or how to carry out the qualitative aspects of its work.
...
To limit the traditional analytic tools available to a court strikes at the heart of its independent adjudicatory process.
...
By limiting the sources of law a federal court may rely upon in granting habeas relief to "clearly established Federal law, as determined by the Supreme Court," § 2254(1) [this might be a mistake] impinges upon a federal court's "judicial power" by "strik[ing] at the center of the judge's process of reasoning."
[and. stating the obvious]
Given the limited nature of Supreme Court review, there are constitutional principles that have been elaborated by the lower federal courts but they have not yet been adopted by clearly established Supreme Court precedent.

They then go on to mock the panel for concluding that an abridgement of “remedy” in habeas cases is really different than an abridgement of what law a judge may apply.  The judges explain that, “The writ involves a right and remedy that are inextricably linked; a prisoner files a writ when the government has incarcerated him in violation of his constitutional rights...Together, the two issues addressed in the panel opinion go to the heart of our constitutional system of government. For that reason alone, en banc review was justified “

See coverage of Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007) here and  here.

DotD comments here.

CA6: Sixth Circuit turns habeas preclusion against the state

DotD points to a decision from the 6th Circuit which holds that if the state courts, pre-Atkin concluded that someone was retarded to be killed by the state but nevertheless could be killed by the state, post-Atkins, the state can’t relitigate the issue of just how retarded the prisoner is on habeas.

CA1: the First says that 28 U.S.C. § 2254(d) is constitutional, because it isn’t a rule of decision

Evans v. Thompson,  No. 07-1014.  The First Circuit takes a position on AEDPA: That it is constitutional in terms of the ways it limits a District Court’s ability to interpret the constitution.  I can’t say I am surprised.

I am a little bemused at the logic it relies on: because “lower” Federal Court (i.e. not the Supreme Court) are created as per Congress then Congress can restrict the jurisdiction of said courts.  There might be ways to save AEDPA, but this isn’t one of them.  Restricting the grounds upon which habeas can be granted is a rule of decision, not a restriction upon the power of courts.  If, for example, Congress divided up Massachusetts into two federal judicial districts, then, one could argue that the Eastern District of Massachusetts wouldn’t have jurisdiction over a convict in the western part of the state.  Okay, the First screwed this up.  But, despite this pathetic analysis, the First does admit some things: that the gap between “erroneous” and “unreasonable” is “narrow.”  It seems to enumerate the areas that fall into this gap.

CA1: Hatian not oppressed

Domercant v. Mukasey, No. 07-1726 (unpublished) denies a petition for review of a Hatian’s petition for asylum.  He didn’t seem too political.  The IJ found him not to be credible.

CA1: An actual opinion describing appellate procedure on a habeas grant

Foxworth v. Maloney, 06-2379.  When I started reading this, I knew it had to be good.  Selya appears to be using big words to grant some kind of habeas relief.  He points out that “The king of habeas remedies is an order for unconditional release with prejudice to reprosecution.”  I wonder what the jester of habeas relief is?  Anyway, it seems that Selya actually seems to be taking this seriously (perhaps because he feels like giving people in jail anything requires more caution than keeping them in jail).  So, let’s get out our Selya-to-English dictionaries and see what he has to say.  (Actually, it turns out that it is fairly well-written, since he is writing for the government attorneys and judges that might actually need to follow his opinions, rather than condemned prisoners who don't matter, anyway.)

First, the District Court granted the petitioner a conditional writ of habeas corpus (i.e. that he be released if not recharged) on the basis of a Bruton error within sixty days.  The District Court did not address the other claims (without saying why it was unnecessary to resolve them).  Then the state (or “Commonwealth”) as they say in the “Bay State” filed a notice of appeal.  The District Court stayed its order.  The petitioner said “Ah ha – the First Circuit has no jurisdiction because the District Court only resolved some of my claims.”  He then said “Nevermind.”  But, the First says that it needs to resolve whether it really has jurisdiction, anyway.  It says, that because the District Court considered its work done, there was a final judgment, and there is no need to consider whether FRCP 54 applies in the habeas context.  (Though a footnote does collect cases on the issue from other circuits.)

CA1: broken promise not prejudicial

Sleeper v. Spencer, No. 06-2477 affirms the denial of a habeas petition.  “The sole ground certified for appeal is Sleeper’s claim that he received ineffective assistance of counsel because his attorney promised in his opening statement to present an insanity defense even though he knew or should have known that the court would not allow the jury to consider the defense.”  The state courts concluded that this was a misstatement, rather than a broken promise, and the state courts concluded that there was no prejudice.  Under AEDPA, The First stops the analysis there without stating whether that means that performance was deficient. 

CA1: all sorts of stuff about habeas.

Teti v. Dennehy, No. 06-2371. Update: I reworked this post.  So you are therefore required to read it again. 

This case is a AEDPA habeas case, which, like most of them, end up hurting the petitioner and justice.  It comes to the First on a certificate of appealability.  Setting the stage, the defendant’s lawyer may have had a conflict, as he represented an informant-witness.  At one point the state trial judge agreed that there was a conflict, but she later changed her mind.

The First Circuit spells out the law regarding how conflicts don’t have to be prejudicial to render assistance ineffective, but it also notes that Massachusetts law is more favorable to defendants on this issue.  The first finds that 28 U.S.C. § 2254(d) applies to the ineffective assistance claim, because it was “adjudicated on the merits” and concludes that the deferential standard applies, to the Massachusetts Appellate Court’s findings on the merits regarding ineffective assistance.

Keeping reading.  Or sign out to go to the bathroom.

CA1: what isn’t actual innocence

Walker v. Russo, No. 07-1650.  This is a habeas appeal.  “The only question at trial [at state court] was whether the defendant was guilty of first degree murder or a lesser offense; that depended on whether the murder was premeditated.”  The only issue in this appeal of a habeas denial is an ineffective assistance argument regarding whether his lawyer failed to elicit certain fact testimony, and that he is actually innocent.  (And therefore can be excused from the cause and prejudice procedural default exception.)  The First concludes that his theory, “If this evidence were added into the mix, Walker's theory goes, a jury would have acquitted because if Walker was leaving the premises he could not have planned to stab Davis and so the murder was not premeditated.” is too much of a leap to make the “actual innocence” standard.

So, ironically, he can’t demonstrate “actual innocence” and it doesn’t’ matter whether he is “actually guilty.”  The First says it isn’t discussing House v. Bell, 126 S. Ct. 2064 (2006).